Straass v. DeSantis CA4/1 ( 2014 )

Filed 7/31/14 Straass v. DeSantis CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
KAREN STRAASS et al., D064040
Plaintiffs and Appellants,
v. (Super. Ct. No. 37-2011-00077448-
CU-PO-SC)
FRANK DESANTIS et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of San Diego County, Judith F.
Hayes, Judge. Affirmed.
Lawrence Wasserman for Plaintiffs and Appellants.
Wilson, Elser, Moskowitz, Edelman & Dicker, Robert W. Harrison and Patrick J.
Kearns, for Defendants and Respondents.
Plaintiffs Karen and Mark Straass appeal a judgment in favor of defendants Frank
DeSantis, Valorie Ryan, and the Law Offices of Frank DeSantis (together, DeSantis)
after the court granted DeSantis's summary judgment motion on the Straasses' complaint
for legal malpractice and related claims arising from DeSantis's handling of a medical
malpractice case. DeSantis's summary judgment motion rested on two primary grounds:
first, the Straasses had not designated a qualified legal expert witness to opine on the
standard of care and other issues essential to their claims; and second, the Straasses could
not establish damages as a result of DeSantis's alleged legal malpractice and other
wrongful conduct. The trial court granted DeSantis's motion on both grounds.
The Straasses designated Lawrence Wasserman, who was also their counsel of
record, as their legal expert witness. For reasons we shall explain, Wasserman was
unqualified to render an expert opinion on the specific instances of alleged malpractice
based on his lack of experience handing medical malpractice cases. Because the
Straasses' claims require expert testimony, and the Straasses did not identify a qualified
expert witness to support their claims, the trial court did not err in granting DeSantis's
summary judgment motion. We therefore affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In May 2009, Mark Straass retained DeSantis to represent him in connection with
a personal injury claim against Kaiser Foundation Hospitals. The claim arose from
gallbladder surgery that Mark underwent more than two years earlier.1 Mark,
represented by DeSantis, later filed a demand for arbitration against various Kaiser
entities and the doctor responsible for the surgery (together, Kaiser). The arbitration
demand alleged that Kaiser improperly performed the surgery by failing to remove
surgical clips from Mark's body when the surgery was completed. Following the surgery,
1 To avoid confusion, we will refer to the Straasses by their first names where
necessary.
2
Mark made repeated visits to Kaiser to treat various symptoms, including back and side
pain, elevated white blood cell counts, and a lump on his back of increasing size. An X-
ray later revealed that the surgical clips had migrated to his back. Mark suffered a severe
infection. Mark subsequently had surgery to remove the clips and repair the damage to
his back caused by the infection. Mark's arbitration demand alleged that Kaiser was
professionally negligent in performing Mark's gallbladder surgery and by failing to find
and diagnose Mark's severe infection. Mark sought general and specific damages in
unspecified amounts.
Approximately six weeks later, DeSantis sent Kaiser a demand for settlement.
The settlement demand recounted Kaiser's alleged negligence and detailed various
categories of damages Mark claimed. These categories included medical bills, lost
wages, and lost pension benefits. DeSantis's settlement demand further noted "there has
been a loss of consortium." The total damages Mark claimed exceeded $1.25 million.
The settlement demand offered to resolve the matter for $650,000. Kaiser responded,
disputing liability and offering no monetary settlement.
Mark was deposed in the Kaiser arbitration. During his deposition, Mark testified
that he felt the surgical clips "cutting" him during abdominal exercises soon after the
gallbladder surgery. Mark said he knew at that point that the clips were causing him
injury.
Three weeks later, DeSantis sent Mark a letter stating that "[a]fter extensive work
on your case, given the facts surrounding the case, I have come to the conclusion that this
office will no longer be able to represent you with regards to this case." DeSantis's letter
3
asked Mark to sign a substitution of counsel form and informed him that DeSantis would
file a motion to withdraw if he did not. With its letter, DeSantis enclosed an offer to
compromise from Kaiser under Code of Civil Procedure section 998. Kaiser offered to
waive costs if Mark dismissed his claims with prejudice. DeSantis encouraged Mark to
seek other counsel if he chose to continue pursuing his claims against Kaiser. Mark
signed the substitution form and proceeded in propria persona against Kaiser.
Kaiser then filed a motion for summary judgment, arguing among other things that
Mark's claim based on alleged negligence during his gallbladder surgery was barred by
the applicable statute of limitations. Kaiser contended Mark's deposition testimony
showed that he knew of his injury soon after the surgery. In Kaiser's view, Mark should
have filed suit within one year of that time. (See Code Civ. Proc., § 340.5 [action must
be commenced within "one year after the plaintiff discovers, or through the exercise of
reasonable diligence should have discovered, the injury"].)
While Kaiser's motion was pending, Mark contacted Wasserman to represent him
in the Kaiser arbitration. Mark's aunt, Sonia Breedlove, was a former legal secretary to
Wasserman. Although Wasserman told Breedlove and the Straasses that he "was not
seeking new cases, [he] had never done a medical malpractice case, [he] did not want to
do a medical malpractice case and was trying to fully retire as an attorney," Wasserman
agreed to represent Mark on an interim basis and help the Straasses secure an attorney
that specialized in medical malpractice.
4
Wasserman was never able to find a medical malpractice specialist to represent
Mark. Karen Straass said that Wasserman told the Straasses he " 'was stuck with' " them.
Wasserman has not maintained an office for the practice of law since 1996.
Mark, represented by Wasserman, filed a motion to continue the summary
judgment hearing and the arbitration hearing, which the court granted. Mark then filed an
amended demand for arbitration. The amended demand named as additional respondents
several Kaiser doctors involved in Mark's treatment following his gallbladder surgery.
The additional respondents were substituted for "Doe" respondents named in the original
arbitration demand. Mark also added a number of additional allegations of professional
negligence, including Kaiser's failure to adequately identify and treat an infection
associated with antibiotic resistant bacteria, Enterobacter cloacae, in the weeks prior to
Mark's gallbladder surgery. The amended demand for arbitration alleged that Kaiser's
failure to treat the bacteria led to Mark's subsequent back infection. Mark also added
claims for ordinary negligence against the Kaiser corporate respondents. Mark
subsequently designated two medical experts, Dr. Graham Woolf and Dr. Richard
Socolov, and a damages expert.
Mark, still represented by Wasserman, eventually dismissed his claims against
Kaiser with prejudice right before the arbitration hearing. Karen Straass explained that
"[j]ust before the Arbitration hearing date Mr. Wasserman told us that he did not feel he
was adequately prepared for the arbitration and was going to dismiss the case." As
Wasserman wrote to a colleague, "Lawrence Wasserman (me) prepared the case. In
concentrating on liability I neglected to brief my expert witness on causation or damages.
5
He emphatically stated during his deposition that he had not been retained to render an
opinion on that. Kaiser made a motion to exclude evidence of causation. I dismissed the
case on the eve of the hearing." Wasserman had been representing the Straasses for
almost eight months by the time of the scheduled arbitration hearing.
Wasserman told the Straasses that "there was likely an action against Mr. DeSantis
for legal malpractice and [they] should continue looking for legal representation.
[Wasserman] told [the Straasses] that if [they] got a new attorney they might want to
consider whether Mr. Wasserman had been negligent" as well. The Straasses were
unable to find an attorney to represent them in connection with these potential legal
malpractice claims. The Straasses thus filed a complaint against DeSantis in propria
persona with the assistance of Wasserman. After DeSantis demurred to the complaint,
Wasserman appeared as the Straasses' counsel in this action as well. Karen stated that
Wasserman "again indicated that he was stuck with representing us."
The operative verified second amended complaint (SAC) alleged three causes of
action against DeSantis: legal malpractice, failure to advise of action for loss of
consortium, and breach of fiduciary duty. The legal malpractice claim, alleged on behalf
of Mark only, contained 13 separate alleged instances of malpractice by DeSantis: (1)
filing the demand for arbitration beyond the three-year statute of limitations applicable to
professional negligence based on Mark's gallbladder surgery; (2) failing to allege a cause
of action for ordinary negligence against the Kaiser corporate entities; (3) failing to name
additional individual Kaiser doctors as respondents; (4) failing to retain or consult with a
medical surgical specialist regarding Mark's gallbladder surgery; (5) failing to retain a
6
medical expert to render an opinion regarding Mark's gallbladder surgery and subsequent
care; (6) failing to seek a medical opinion until after the demand for arbitration had been
filed; (7) consulting with Dr. Woolf, who was a gastroenterologist and not qualified to
render an opinion on surgery or infectious diseases; (8) failing to pay Dr. Woolf and
obtain his medical opinion; (9) failing to retain an infectious disease expert regarding
Mark's E. cloacae infection; (10) submitting a demand for settlement based on the theory
that Mark's infection was caused by surgical clips, which was unfounded and
contradicted by Dr. Woolf; (11) submitting a demand for settlement without expert
opinions on medical malpractice, causation of monetary injury, and computation of
monetary damages; (12) selecting an arbitrator whose son worked as a doctor at Kaiser;
and (13) abandoning its representation of Mark and failing to take action to prevent harm
to his interests.
The claim for failure to advise of action for loss of consortium, on behalf of Karen
only, alleged that DeSantis had a duty to inform her that she had an action for loss of
consortium. DeSantis allegedly failed to do so, causing Karen harm. The final claim for
breach of fiduciary duty, on behalf of Mark only, alleged violations of the California
Rules of Professional Conduct through DeSantis's alleged failure to act competently and
to communicate significant developments to the Straasses during the Kaiser arbitration.
DeSantis filed a verified answer, denying the substance of most of the Straasses'
allegations. DeSantis denied committing any negligence or breaching any duty.
DeSantis also alleged various affirmative defenses.
7
After almost two years of litigation, DeSantis filed a motion for summary
judgment on the Straasses' SAC. DeSantis argued that the Straasses' claims required
expert legal testimony regarding the applicable standard of care. DeSantis contended that
the Straasses' designated legal expert, their counsel Lawrence Wasserman, was
unqualified to provide such testimony and was ethically prohibited from doing so as well.
(See, e.g., Cal. Rules Prof. Conduct, rule 5-210.) DeSantis argued additionally that the
California Rules of Professional Conduct did not provide an independent cause of action
to the Straasses and that the Straasses could not prove damages in this " 'settle and sue' "
case.
The Straasses opposed, arguing that DeSantis's motion was procedurally defective
because its separate statement of undisputed material facts did not comply with the
California Rules of Court, rule 3.1350. The Straasses also argued that their counsel,
Wasserman, was qualified to render a legal opinion on the alleged malpractice and was
not ethically prohibited from testifying. They later submitted a written consent for
Wasserman to testify pursuant to Rule 5-210(c) of the California Rules of Professional
Conduct. The Straasses disputed whether their claim for breach of fiduciary duty was
viable and asserted that the issue had already been determined in connection with
DeSantis's prior demurrer on the subject. The Straasses argued that DeSantis did not
specifically address their claim for failure to advise regarding loss of consortium. The
Straasses further argued that DeSantis had not met its burden on summary judgment to
show either that the Straasses could not establish damages or that the prior Kaiser
arbitration ended in a settlement.
8
Following a reply and surreply, the trial court issued a tentative ruling granting
summary judgment. At the hearing on the court's tentative ruling, both parties submitted
without substantive argument. (Wasserman requested only that the court change its
description of him as "incompetent" to "not qualified." The court did so.) The court
found that the Straasses "cannot establish essential elements of their causes of action
because they lack qualified expert witness testimony." The court further found that the
Straasses "are unable to establish they suffered damage as a result of defendants'
conduct." The court entered judgment in favor of DeSantis, and the Straasses appeal.
DISCUSSION
I
We first address the procedural issues raised by the Straasses. The Straasses
contend the trial court did not comply with Code of Civil Procedure section 437c,
subdivision (g), in its order granting DeSantis's motion for summary judgment. That
section provides, in relevant part, as follows: "Upon the grant of a motion for summary
judgment, on the ground that there is no triable issue of material fact, the court shall, by
written or oral order, specify the reasons for its determination. The order shall
specifically refer to the evidence proffered in support of, and if applicable in opposition
to, the motion which indicates that no triable issue exists." (Code Civ. Proc., § 437c,
subd. (g).)
The Straasses claim that "the Trial Court Minutes granting the motion broadly
state[], in effect, that everything that [DeSantis] did in their motion was correct and that
everything that [the Straasses] did was wrong. That is not the specific reference required
9
by the statute." The Straasses mischaracterize the trial court's order. The order specified
the court's reasons for granting the motion and identified the evidence supporting its
findings by reference to specific items in DeSantis's separate statement of material
undisputed facts. The Straasses have not established any error under Code of Civil
Procedure section 437c, subdivision (g). Moreover, even if there was error, the Straasses
have not shown why it would be cause for reversal. (See Unisys Corp. v. California Life
& Health Ins. Guarantee Association (1998) 63 Cal. App. 4th 634, 640; Soto v. California
(1997) 56 Cal. App. 4th 196, 199.)
In their opening brief, the Straasses also appear to contend that the court abused its
discretion in considering DeSantis's motion for summary judgment because DeSantis's
separate statement did not comply with the California Rules of Court, rule 3.1350(d). In
their reply, the Straasses disclaim such a contention. We therefore need not consider it.
We note that this court has rejected similar contentions in the past. (See Truong v.
Glasser (2009) 181 Cal. App. 4th 102, 118.)
II
A
The standards we apply to the substance of the court's order granting summary
judgment are familiar. "A defendant's motion for summary judgment should be granted
if no triable issue exists as to any material fact and the defendant is entitled to a judgment
as a matter of law. [Citation.] The burden of persuasion remains with the party moving
for summary judgment. [Citation.] When the defendant moves for summary judgment,
in those circumstances in which the plaintiff would have the burden of proof by a
10
preponderance of the evidence, the defendant must present evidence that would preclude
a reasonable trier of fact from finding that it was more likely than not that the material
fact was true [citation], or the defendant must establish that an element of the claim
cannot be established, by presenting evidence that the plaintiff 'does not possess and
cannot reasonably obtain, needed evidence.' " (Kahn v. East Side Union High School
Dist. (2003) 31 Cal. 4th 990, 1002-1003 (Kahn).)
" 'Once the defendant . . . has met that burden, the burden shifts to the
plaintiff . . . to show that a triable issue of one or more material facts exists as to that
cause of action or a defense thereto. The plaintiff . . . may not rely upon the mere
allegations or denials' of his 'pleadings to show that a triable issue of material fact exists
but, instead,' must 'set forth the specific facts showing that a triable issue of material fact
exists as to that cause of action or a defense thereto.' " (Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal. 4th 826, 849.)
"We review the record and the determination of the trial court de novo." (Kahn,
supra, 31 Cal.4th at p. 1003.) "In performing our de novo review, we must view the
evidence in a light favorable to plaintiff as the losing party [citation], liberally construing
[the plaintiff's] evidentiary submission while strictly scrutinizing defendants' own
showing, and resolving any evidentiary doubts or ambiguities in plaintiff's favor."
(Saelzler v. Advanced Group 400 (2001) 25 Cal. 4th 763, 768.)
B
The Straasses contend that the trial court erred in finding that their causes of action
required the testimony of a qualified expert. DeSantis disagrees, arguing that an expert is
11
required to establish that the conduct alleged by the Straasses is malpractice or otherwise
wrongful. We address the Straasses' three causes of action in turn.
1
The Straasses' cause of action for legal malpractice consists of the following
elements: " '(1) the duty of the attorney to use such skill, prudence and diligence as
members of the profession commonly possess; (2) a breach of that duty; (3) a proximate
causal connection between the breach and the resulting injury; and (4) actual loss or
damage.' " (Wiley v. County of San Diego (1998) 19 Cal. 4th 532, 536.) " 'The attorney is
not liable for every mistake he may make in his practice; he is not, in the absence of an
express agreement, an insurer of the soundness of his opinions or the validity of an
instrument that he is engaged to draft; and he is not liable for being in error as to a
question of law on which reasonable doubt may be entertained by well-informed
lawyers.' " (Kirsch v. Duryea (1978) 21 Cal. 3d 303, 308 (Kirsch).)
"Plaintiffs' proof relative to these issues generally requires the testimony of experts
as to the standards of care and consequences of breach. 'Expert evidence in a malpractice
suit is conclusive as to the proof of the prevailing standard of skill and learning in the
locality and of the propriety of particular conduct by the practitioner in particular
instances because such standard and skill is not a matter of general knowledge and can
only be supplied by expert testimony.' " (Lipscomb v. Krause (1978) 87 Cal. App. 3d 970,
976; see 1 Witkin, Cal. Procedure (5th ed. 2008) Attorneys, § 291, p. 367 ["The fact of
breach is proved by expert opinion on whether the attorney followed the standards of skill
and diligence prevailing in the profession."].)
12
"Expert testimony is needed when it will assist the trier of fact. It is not
appropriate in all cases. [Citation.] Where the attorney's performance is so clearly
contrary to established standards that a trier of fact may find professional negligence
without expert testimony, it is not required." (Day v. Rosenthal (1985) 170 Cal. App. 3d
1125, 1146 (Day); Wilkinson v. Rives (1981) 116 Cal. App. 3d 641, 647-648.) Moreover,
where "the lay person's common knowledge includes the conduct required by the
particular circumstances[,]" the "general rule" requiring expert testimony does not apply.
(Unigard Ins. Group v. O'Flaherty & Belgum (1995) 38 Cal. App. 4th 1229, 1239
(Unigard).)
For example, in Day, the trial court described the attorney's malpractice as
follows: " 'The case from beginning to end oozes with attorney-client conflicts of
interest, clouding and shading every transaction and depriving [the clients] of the
independent legal advice to which they were entitled. It involves kickbacks, favored
treatment of one client over others; it involves amateurish attempts to deal in the hotel
and oil business that would be humorous but for the tragic consequences. It involves the
extraction of fees from [multiple clients] for the same work performed. It involves an
undertaking to provide financial and investment advice and a complete and utter failure
to provide it." (Day, supra, 170 Cal.App.3d at pp. 1134-1135.) The Court of Appeal
explained that the attorney's "irresponsible 'representation' of [his clients] trampled on
basic attorney obligations . . . ." (Id. at p. 1147.) Under these circumstances, the court
concluded that expert testimony was not needed to prove the attorney's professional
negligence. (Id. at p. 1149.)
13
Here, by contrast, the Straasses' first allegation of malpractice, and the one on
which their argument is primarily focused, consists of DeSantis's failure to file the
Straasses' demand for arbitration within three years of Mark's gallbladder surgery. The
Straasses argue that their allegation falls within the exception to the general rule that
expert testimony is needed to establish legal malpractice. We disagree. It would not be
within a layperson's common knowledge to consider what conduct was required of
DeSantis under the circumstances of this case. (See Unigard, supra, 38 Cal.App.4th at p.
1239.) The applicable statute of limitations is affected by factors not addressed by the
Straasses, including the potential presence of a foreign object (the surgical clips) in
Mark's body, which could extend the statute, and Mark's admission that he knew the
surgical clips had injured him soon after surgery, which could limit the statute to a time
before Mark consulted DeSantis.2 DeSantis's decision to file would also have to be
assessed in light of the timing and scope of DeSantis's retention, DeSantis's diligence in
investigating Mark's claims, Mark's statements to DeSantis, and the merits of Mark's
claim. In light of these considerations, DeSantis's conduct is not "so clearly contrary to
established standards" as to remove the general requirement for expert testimony. (Day,
2 The applicable statute provides as follows: "In an action for injury or death
against a health care provider based upon such person's alleged professional negligence,
the time for the commencement of action shall be three years after the date of injury or
one year after the plaintiff discovers, or through the use of reasonable diligence should
have discovered, the injury, whichever occurs first. In no event shall the time for
commencement of legal action exceed three years unless tolled for any of the following:
(1) upon proof of fraud, (2) intentional concealment, or (3) the presence of a foreign
body, which has no therapeutic or diagnostic purpose or effect, in the person of the
injured person." (Code Civ. Proc., § 340.5.)
14
supra, 170 Cal.App.3d at p. 1146.) The applicable standards, i.e., the proper conduct of
DeSantis under the circumstances, would require expert testimony. (See Jeffer, Mangels
& Butler v. Glickman (1991) 234 Cal. App. 3d 1432, 1441 (Jeffer Mangels) ["The standard
of care must be established so the jury can understand the 'propriety of particular conduct
by the practitioner in particular instances because such standard and skill is not a matter
of general knowledge.' "].) Unlike Day, supra, 170 Cal.App.3d at pp. 1134-1135, where
the attorney's malpractice was self-evident, DeSantis's alleged conduct would require the
specialized knowledge of an expert to assess properly.3
3 In addition to Day, the Straasses cite Goebel v. Lauderdale (1989) 214 Cal. App. 3d
1502 (Goebel) and Stanley v. Richmond (1995) 35 Cal. App. 4th 1070 (Stanley) as
examples of cases where expert testimony was not required. Neither of these cases is
persuasive because the instances of alleged malpractice here are readily distinguishable.
In Goebel, the court considered a bankruptcy attorney's advice to his client, a contractor
who was in financial trouble. (Goebel, at p. 1505.) The bankruptcy attorney advised the
contractor to collect $15,000 the contractor believed he was owed on a construction
project and to stop work on the project. (Ibid.) Unbeknownst to the attorney, his advice
caused the contractor to violate Penal Code section 484b, which forbade the contractor
from collecting the money where it was actually owed to persons who furnished labor
and material for the project. (Ibid.) Violation of that section constitutes a felony. (Ibid.)
The client was subsequently arrested and convicted. (Id. at p. 1506.) Although the
court's holding is ambiguous, it is reasonable to conclude that the court found that expert
testimony was unnecessary under the circumstances of that case. (Id. at p. 1508.) As the
court explained, "Quite simply, [the attorney] advised his client to break the law. We see
no problem in concluding that, as a matter of law, such conduct markedly departs from
the skill and diligence attorneys commonly possess." (Id. at p. 1509.) In Stanley, while
the court considered the issue of breach to be within the understanding of a lay jury,
expert testimony regarding the standard of care applicable to a specialist attorney (there,
family law) was in evidence. (Stanley, supra, 35 Cal.App.4th at pp. 1092-1094.) Given
this testimony, whether the attorney breached the standard by her " 'total failure to
perform even the most perfunctory research' on the legal issues" requested by her client
was a question the jury could answer unaided by expert testimony. (Id. at p. 1093, italics
omitted.) The facts of this case bear no relation to the circumstances of Goebel and
15
The other instances of malpractice alleged by the Straasses similarly fall within the
"general rule [that] the standard of care against which the professional's acts are measured
remains a matter peculiarly within the knowledge of experts." (Unigard, supra, 38
Cal.App.4th at p. 1239; see Lipscomb v. Krause, supra, 87 Cal.App.3d at p. 976.) In
some cases, the Straasses concede that expert testimony would be required. In others,
their arguments to the contrary are unpersuasive.
Two instances involve pleading issues: DeSantis's alleged failure to include an
additional cause of action (for ordinary negligence) and additional respondents
(individual Kaiser doctors) in Mark's demand for arbitration. The Straasses concede that
the former would not fall within the common knowledge of a layperson. Regarding the
latter, the Straasses do not offer any argument that expert testimony would not be
required and, indeed, appear to concede the point on this allegation as well. We agree
that these issues require expert testimony.
Six instances of alleged malpractice involve negligence in consulting and retaining
medical experts. The handling of experts, and specifically the decision of an attorney to
employ or seek opinions from them, is generally outside the scope of common
knowledge. (See Kirsch, supra, 21 Cal.3d at p. 311 ["The extent to which an attorney, in
the exercise of due care, will advance funds to hire investigators, depose witnesses, or
perform tests on a client is not a matter of common knowledge."].) Here, the Straasses'
malpractice claims involve specific allegations regarding DeSantis's retention and
Stanley. Moreover, Stanley appears to confirm that expert testimony was required at least
on the standard of care applicable to an attorney.
16
payment of experts, the timing of DeSantis's consultations with experts, and the
qualification of the experts DeSantis consulted. Contrary to the Straasses' assertions, a
layperson has no experience in these matters and would be unable to assess DeSantis's
conduct, under the circumstances of this case, without the aid of expert testimony.
Moreover, in none of these instances was DeSantis's conduct a violation of clear and
established standards, such that expert testimony would not be required.
Two other instances of alleged malpractice involve DeSantis's demand for
settlement, which the Straasses allege was unsupported and at least partially contradicted
by a medical expert consulted by DeSantis. The Straasses again concede that expert
opinion "would be helpful in explaining the importance of submitting [a] strong medical
opinion of the diagnosis, prognosis, and causation of the personal injury." However, the
Straasses contend that no expert opinion is required to assess DeSantis's alleged
negligence in including statements in Mark's settlement demand that were not supported
or were contradicted by the medical expert consulted by DeSantis. We find the Straasses'
contention unpersuasive. The tactical considerations involved in drafting a settlement
demand do not fall within a layperson's common experience. (See Kirsch, supra, 21
Cal.3d at p. 309 ["Frequently an attorney is confronted with legitimate but competing
considerations, and we have recently recognized a latitude granted the attorney engaged
in litigation in choosing between alternative tactical strategies."].) Under the
circumstances of this case—including Mark's later designation of the same expert when
represented by Wasserman—we cannot say that a layperson would be equipped to assess
17
the statements made in the settlement demand. Nor have the Straasses pointed to any
clear and established standard that DeSantis allegedly violated.
The final two instances of alleged malpractice involve DeSantis's selection of an
arbitrator whose son worked for Kaiser and DeSantis's withdrawal from their
representation of Mark in the arbitration. Again, the Straasses state that "foundational
expert legal testimony would be helpful" to explain the selection process for arbitrators.
While we agree, the focus of the Straasses' statement is misplaced. What would be
helpful to a layperson, and indispensible in considering the Straasses' allegation of
malpractice, would be expert testimony regarding the circumstances of DeSantis's
selection of the arbitrator in question, the considerations for and against such a selection,
and what conduct would be expected of an attorney of ordinary skill in the same
situation. Similarly, the fact that DeSantis withdrew from representation must be
assessed in light of the circumstances, including Mark's testimony regarding the
discovery of his injury. A layperson would have no tools to assess the propriety of
DeSantis's action in this case. The Straasses contend that "[t]he applicable specific Rule
of Professional Conduct would be subject to judicial notice[,]" but they do not name such
a rule or explain how a layperson could understand or apply it under the circumstances of
this case without the aid of expert testimony. An attorney who seeks to withdraw from a
representation does not invariably commit malpractice. The Straasses have not shown
that DeSantis's conduct violated a clear and established standard that would exempt their
allegations from the general rule requiring expert testimony.
18
Unlike Day and Goebel, the instances of legal malpractice alleged by the Straasses
involve the application of legal judgment under complex and shifting circumstances.
(See Kirsch, supra, 21 Cal.3d at p. 309.) Notably, neither Day nor Goebel was primarily
focused on the tactical litigation decisions at issue here. In the context of contested
medical malpractice litigation, the need for expert testimony on the Straasses' allegations
is apparent. The Straasses' allegations involve situations and conduct beyond the
common knowledge of laypersons and for which no clear standards have been
established. For the reasons we have stated, we conclude that the Straasses were required
to produce expert testimony to establish their legal malpractice claim.
2
Karen's cause of action for failure to advise on loss of consortium "is for
professional negligence, in the nature of attorney malpractice. That aspect of negligence
consists of the failure of an attorney to 'use such skill, prudence, and diligence as lawyers
of ordinary skill and capacity commonly possess and exercise in the performance of the
tasks which they undertake.' " (Meighan v. Shore (1995) 34 Cal. App. 4th 1025, 1034.)
The standards governing the necessity of expert testimony in legal malpractice actions
therefore apply to this cause of action as well. The Straasses contend that legal expert
testimony is unnecessary to establish Karen's claim because "the attorney's legal duty can
be established by judicial notice of the duty to advise her of her cause of action" for loss
of consortium. But the Straasses do not show that DeSantis's duty under the
circumstances—and subsequent breach of that duty—was so clear and established that it
19
would be understandable by a layperson. Indeed, the undisputed evidence shows that
DeSantis referenced loss of consortium in Mark's settlement demand to Kaiser.
The scope of DeSantis's duty to advise Karen on loss of consortium and DeSantis's
alleged breach must account for the facts known to DeSantis, the value of Karen's
potential claim, litigation considerations, the actions undertaken by DeSantis (including
the arbitration and settlement demands), and numerous other factors beyond the common
knowledge of laypersons. (See Kirsch, supra, 21 Cal.3d at p. 309.) Moreover, Karen's
ability to recover for loss of consortium depended on the success of Mark's medical
malpractice claim. (See Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 746.) Again, unlike
Day and Goebel, the conduct Karen alleges is neither so clearly malpractice nor so within
the common knowledge of laypersons as to remove it from the general rule requiring
expert testimony in legal malpractice actions. Qualified expert testimony is required.
3
Mark's cause of action for breach of fiduciary duty "is a species of tort distinct
from a cause of action for professional negligence. [Citations.] The elements of a cause
of action for breach of fiduciary duty are: (1) the existence of a fiduciary duty; (2) breach
of the fiduciary duty; and (3) damage proximately caused by the breach." (Stanley,
supra, 35 Cal.App.4th at p. 1086.) "The scope of an attorney's fiduciary duty may be
determined as a matter of law based on the Rules of Professional Conduct which,
'together with statutes and general principles relating to other fiduciary relationships, all
help define the duty component of the fiduciary duty which an attorney owes to his [or
her] client.' " (Ibid.) At least one court has stated that "[e]xpert testimony is not
20
required" on the issue of breach. (Id. at p. 1087.) However, "a judge may resort to expert
testimony to establish the standard of care when that standard is not a matter of common
knowledge or where the attorney is practicing in a specialized field." (David Welch Co.
v. Erskine & Tulley (1988) 203 Cal. App. 3d 884, 893.) The standards governing expert
testimony in legal malpractice actions are therefore informative here as well.
To show error, the Straasses reference their prior argument with respect to Mark's
legal malpractice cause of action, apparently recognizing the overlapping standards and
the substantial similarity between their factual allegations in the two causes of action.4
We find this reference unpersuasive for the reasons set forth in part II.B.2, ante. The
Straasses have not raised any additional issues regarding the necessity of expert
testimony to Mark's cause of action for breach of fiduciary duty. "Although our review
of a summary judgment is de novo, it is limited to issues which have been adequately
raised and supported in plaintiff['s] brief. [Citations.] Issues not raised in an appellant's
brief are deemed waived or abandoned." (Reyes v. Kosha (1998) 65 Cal. App. 4th 451,
466, fn. 6.) Moreover, even if we were to consider the factual allegations underlying
Mark's breach of fiduciary duty claim, we would conclude that expert testimony would
be necessary to establish that claim. Mark bases this claim on allegations that DeSantis
failed to act "competently" and failed to "communicate significant developments" in the
4 Despite this reference, the Straasses claim on reply that this ground for summary
judgment was not briefed in the trial court. We disagree. Although DeSantis urged an
additional, alternative ground for summary judgment on this claim, DeSantis also argued
that all of the Straasses' claims, including breach of fiduciary duty, required expert
testimony. The trial court agreed.
21
case to the Straasses. (See Cal. Rules Prof. Conduct, rules 3-110, 3-500.) These broad
standards would require explanation by an expert witness to be meaningful to a lay jury
under the circumstances alleged here.
C
Because we conclude that the Straasses' causes of action require qualified legal
expert testimony, we next consider whether the court properly granted summary
judgment because the Straasses lacked such testimony. As a general matter, the
qualification of experts may be assessed on summary judgment. (See Littlefield v.
County of Humboldt (2013) 218 Cal. App. 4th 243, 256-257 [affirming summary judgment
where opposing party failed to offer qualified expert testimony on an essential issue].)
"The same rules of evidence that apply at trial also apply to the declarations submitted in
support of and in opposition to motions for summary judgment. Declarations must show
the declarant's personal knowledge and competency to testify, state facts and not just
conclusions, and not include inadmissible hearsay or opinion." (Bozzi v. Nordstrom, Inc.
(2010) 186 Cal. App. 4th 755, 761 (Bozzi).) Such declarations are therefore subject to
foundational challenges. "For example, the lack of foundation of an expert's testimony
can be as to the expert being qualified, the validity of the principles or techniques upon
which the expert relied, or as to the reliability and relevance of the facts upon with the
expert relied." (Howard Entertainment, Inc. v. Kudrow (2012) 208 Cal. App. 4th 1102,
1114 (Howard).)
"The declarations in support of a motion for summary judgment should be strictly
construed, while the opposing declarations should be liberally construed. [Citation.]
22
This does not mean that courts may relax the rules of evidence in determining the
admissibility of an opposing declaration. Only admissible evidence is liberally construed
in deciding whether there is a triable issue." (Bozzi, supra, 186 Cal.App.4th at p. 761.)
Of course, the qualifications of an expert for a plaintiff opposing summary
judgment may only be considered where the moving defendant has met its burden, i.e.,
where it has "present[ed] evidence that would preclude a reasonable trier of fact from
finding that it was more likely than not that the material fact was true [citation], or [has]
establish[ed] that an element of the claim cannot be established, by presenting evidence
that the plaintiff 'does not possess and cannot reasonably obtain, needed evidence.' "
(Kahn, supra, 31 Cal.4th at p. 1003.) Here, as an initial matter, the Straasses appear to
contend that DeSantis has not met its initial burden. We disagree. DeSantis set forth the
nature of the Straasses' claims, as alleged in their complaint. DeSantis further introduced
the Straasses' expert witness disclosure under Code of Civil Procedure section 2034.260
identifying their counsel, Lawrence Wasserman, as their sole legal expert witness.
DeSantis used that disclosure, as well as other evidence and allegations in the Straasses'
complaint, to show that Wasserman was unqualified or unable to offer expert legal
opinions supporting the Straasses' claims. As explained more fully below, this evidence
was sufficient to shift the burden to the Straasses to establish Wasserman's qualifications.
The fact that this argument did not raise a substantive defense to the Straasses' claims
(e.g., that DeSantis was not negligent) is irrelevant because DeSantis established another
way in which the Straasses would be unable to establish their claims: they lacked a
qualified legal expert witness.
23
1
The parties dispute the applicable standard by which we review the trial court's
determination that Wasserman was unqualified. DeSantis urges us to adhere to the
traditional rule that evidentiary rulings made in the context of a summary judgment
decision are reviewed for abuse of discretion. (See Miranda v. Bomel Construction Co.
(2010) 187 Cal. App. 4th 1326, 1335.) The Straasses argue that the trial court did not rule
on any specific evidentiary objections made by the Straasses, and thus de novo review is
appropriate. (See Reid v. Google, Inc. (2010) 50 Cal. 4th 512, 535 (Reid).)
Here, the trial court stated the following: "Plaintiffs' Evidentiary Objections are
overruled. The Court declines to rule further on specific objections as to evidence that
the Court did not rely upon in rendering its decision. Any evidence cited in support of
the Court's ruling herein, is deemed admissible and any objection made to that evidence
is considered overruled. The Court disregards all evidence which is found to be
incompetent or inadmissible." The court then expressly found that DeSantis showed the
Straasses "lack[ed] qualified expert witness testimony" and could not establish damages.
Because the Straasses did not create triable issues of material fact on these issues, the
court found summary judgment appropriate. Following its findings, the court referenced
30 undisputed facts from DeSantis's separate statement.
The court plainly addressed the merits of Wasserman's qualifications; it was one of
the grounds supporting DeSantis's motion. The court's analysis is therefore
distinguishable from Reid, where the trial court " 'decline[d] to render formal rulings on
evidentiary objections' " and simply stated it was relying " 'on competent and admissible
24
evidence.' " (Reid, supra, 50 Cal.4th at p. 533.) Unlike Reid, where "there was no
exercise of trial court discretion," the trial court here expressly determined that
Wasserman was unqualified.5 In Reid, "the Supreme Court expressly left open the
question of whether a de novo standard or an abuse of discretion standard applies to
evidentiary rulings [actually made] in connection with summary judgment motions . . . ."
(Howard, supra, 208 Cal.App.4th at p. 1114.) We need not reach this issue because our
conclusion would be the same under either standard.
2
"A person is qualified to testify as an expert if he has special knowledge, skill,
expertise, training, or education sufficient to qualify him as an expert on the subject to
which his testimony relates." (Evid. Code, § 720, subd. (a).) " '[T]he qualifications of an
expert must be related to the particular subject upon which he is giving expert testimony.'
[Citation.] Consequently, 'the field of expertise must be carefully distinguished and
limited' [citation], and '[q]ualifications on related subject matter are insufficient'
[citation]." (Howard, supra, 208 Cal.App.4th at p. 1115.) " 'Whether a person qualifies
as an expert in a particular case . . . depends upon the facts of the case and the witness's
qualifications.' [Citation.] '[T]he determinative issue in each case is whether the witness
5 In their briefing, the Straasses claim that certain evidence offered by DeSantis was
inadmissible and should not have been considered by the trial court. However, they do
not support their claims through reasoned argument or authority under any standard of
review. We therefore consider such contentions waived. (See Cahill v. San Diego Gas &
Electric Co. (2011) 194 Cal. App. 4th 939, 956 [" 'The absence of cogent legal argument
or citation to authority allows this court to treat the contention as waived.' "].)
25
has sufficient skill or experience in the field so his testimony would be likely to assist the
jury in the search for truth.' " (Ibid.)
The qualifications of an expert retained by a party opposing summary judgment
should be liberally construed. "The rule that a trial court must liberally construe the
evidence submitted in opposition to a summary judgment motion applies in ruling on
both the admissibility of expert testimony and its sufficiency to create a triable issue of
fact." (Garrett v. Howmedica Osteonics Corp., supra, 214 Cal.App.4th at p. 189.)
However, the trial court must still determine whether the expert's qualifications—even
liberally construed—are sufficient. (See Bozzi, supra, 186 Cal.App.4th at p. 761.)
Here, the Straasses' claims relate to DeSantis's handling of their medical
malpractice arbitration against Kaiser, including DeSantis's drafting and submitting the
Straasses' arbitration and settlement demands, DeSantis's retention and consultation of
medical experts, DeSantis's selection of an arbitrator, DeSantis's decision to withdraw
from the case, and DeSantis's advice regarding loss of consortium. While Wasserman
has been an attorney for over 45 years, he had never handled a medical malpractice case
prior to his representation of the Straasses. As Wasserman explained in his declaration
opposing DeSantis's summary judgment motion, "At all times I advised [the Straasses]
that I was not seeking new cases, I have never done a medical malpractice case, I did not
want to do a medical malpractice case and was trying to fully retire as an attorney."
Wasserman also explained that he had not maintained an active office for the
practice of law since 1996. From 1996 through 2003, Wasserman primarily wrote
appellate case summaries for two legal newspapers. Prior to 1996, Wasserman had a
26
varied legal career. He began work on criminal matters then moved on to civil law as a
"neighborhood sole practitioner." Several of his cases involved personal injuries and
included medical expert testimony. He spoke with colleagues about these cases. After
about 10 years, Wasserman moved on to transactional law, including property
acquisition, building contracts, and corporations. He also did some bankruptcy work.
Wasserman's description of his experience does not establish his qualifications as
an expert under the circumstances of this case. In general, "[w]here a malpractice action
is brought against an attorney holding himself out as a legal specialist and the claim
against the attorney relates to his expertise, then only a person knowledgeable in the
specialty can define the applicable duty of care and render an opinion on whether it was
met." (Goebel, supra, 214 Cal.App.3d at p. 1508; see Wright v. Williams (1975) 47
Cal. App. 3d 802, 810-811.) This principle accords with the established standard in
medical malpractice cases, that a medical expert's " 'qualification must relate to the
branch of the medical field involved in the case . . . .' " (Jeffer Mangels, supra, 234
Cal.App.3d at p. 1442.)
By his own admission, Wasserman had never handled a medical malpractice
matter prior to his representation of the Straasses. Although aspects of his practice
touched on matters relevant to medical malpractice (including working with medical
experts), they do not qualify Wasserman as an expert on the matters alleged by the
Straasses because they were too remote in time and unrelated to the aspects of legal
practice at issue here. Similarly, although Wasserman claims to have consulted with
more experienced colleagues regarding personal injury cases, he has not shown that he
27
gained significant relevant experience through such consultations. "[A]n attorney who
has studied the field . . . and contacted other professionals for additional exposure to the
subject is qualified to provide expert testimony on the subject[,]" but "the depth of study
and exposure is relevant in determining if the attorney is sufficiently qualified." (Jeffer
Mangels, supra, 234 Cal.App.3d at p. 1441.) Wasserman has not shown the requisite
experience even under this alternative avenue.
Wasserman's conduct as the Straasses' counsel in the underlying medical
malpractice action supports this conclusion. In her declaration submitted in opposition to
summary judgment, Karen Straass stated that "[j]ust before the Arbitration hearing date
Mr. Wasserman told us that he did not feel he was adequately prepared for the arbitration
and was going to dismiss the case." In an e-mail to a colleague that the Straasses
submitted in opposition to summary judgment, Wasserman wrote, "Lawrence Wasserman
(me) prepared the case. In concentrating on liability I neglected to brief my expert
witness on causation or damages. He emphatically stated during his deposition that he
had not been retained to render an opinion on that. Kaiser made a motion to exclude
evidence of causation. I dismissed the case on the eve of the hearing." Wasserman's
statements about his experience with experts are particularly relevant here because
several of the Straasses' malpractice allegations focus on DeSantis's handling of experts
as well.
The Straasses' SAC corroborates these statements. The SAC alleges, "Attorney
Wasserman could not secure experienced representation and continued to represent Mr.
Straass until the day before the start of the arbitration hearing, was not prepared to
28
proceed and dismissed the arbitration proceedings." The SAC further alleges, "The
negligence of [DeSantis] was the actual and proximate cause of the damages to plaintiff,
Mark Straass. The subsequent negligence of attorney Wasserman was not a superseding
cause to the negligence of [DeSantis]." In her declaration, Karen confirmed that
Wasserman told the Straasses they should consider whether Wasserman had been
negligent in his representation.
The Straasses contend that the allegations of the SAC may not be used against
them on summary judgment. The Straasses are incorrect. "[A] defendant may rely on the
complaint's factual allegations, which constitute judicial admissions. [Citations.] Such
admissions are conclusive concessions of the truth of a matter and effectively remove it
from the issues. [Citations.] A plaintiff cannot create a triable issue through declarations
that contradict the complaint's factual allegations." (Foxborough v. Van Atta (1994) 26
Cal. App. 4th 217, 222, fn. 3.) The Straasses further claim that "[i]t is not a binding
admission by Wasserman, because a plaintiff cannot admit anything against a third
party." The Straasses' focus on Wasserman is misplaced, however, since the parties to be
bound are the Straasses. They are the parties opposing summary judgment, and they are
the parties offering Wasserman as an expert witness. The allegations of their complaint
may properly be considered on summary judgment. (Ibid.) And, even setting aside these
allegations, the relevant facts regarding Wasserman's handling of the underlying
arbitration matter are amply supported by the declarations that the Straasses themselves
submitted in opposition to DeSantis's summary judgment motion, as we have discussed.
29
We are mindful that parties may encounter difficulties retaining qualified experts,
particularly in professional negligence actions like the Straasses'. " '[I]t is obvious that an
overly strict standard of qualification would make it difficult and in some instances
virtually impossible to secure a qualified expert witness.' " (Jeffer Mangels, supra, 234
Cal.App.3d at p. 1439.) Thus, an expert witness need not have handled the precise matter
at issue in the action for which he or she has been retained. (Id. at p. 1441.) However,
the expert must have sufficient knowledge and experience to enable him or her to opine
intelligently on the issues involved in the underlying matter. The guiding principle in all
cases is whether expert witnesses "demonstrate sufficient knowledge of the subject that
their opinions will be helpful to the jury in the search for the truth." (Id. at p. 1443.)
Even liberally construing Wasserman's qualifications, as we must, he does not have
sufficient knowledge of the subjects encompassing the Straasses' allegations for his
testimony to be helpful to a jury. The court did not err in finding Wasserman unqualified
and granting summary judgment on the Straasses' claims.6
6 In light of our conclusion, we need not reach the alternative grounds for
affirmance urged by DeSantis: that Wasserman should be ethically prohibited from
providing expert testimony on behalf of his clients and that the Straasses cannot establish
damages as a result of DeSantis's alleged legal malpractice and other wrongful conduct.
30
DISPOSITION
The judgment is affirmed. Appellants to bear respondents' costs on appeal.
HALLER, J.
WE CONCUR:
MCCONNELL, P. J.
MCINTYRE, J.
31